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ADDRESS 



OF 



LAWRENCE WASHINGTON 



In Presenting on May 3, 1910, at Montross, Va., tha 
Portrait of Judge Bushrod Washington, Associate 
Justice of tlie Supreme Court of the United States. 



Uttfimonb. 'Virginia : 

Whittet & Shepperson, Printers 

1912 



ADDRESS 



OF 



LAWRENCE WASHINGTON 

•■■■■■■■■■■■■Mi 



In Presenting on May 3, 1910, at Montross, Va., the 
Portrait of Judge Bushrod Washington, Associate 
Justice of the Supreme Court of the United States. 



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3Ricfjntonl>, Virginia : 

Whi'itet & Shepperson, Printers 
1912 






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ADDRESS. 



In appearing before you on behalf of the family of the late 
Colonel John Augustine Washington, of the Confederate States 
Army, to beg the acceptance by Westmoreland county of this por- 
trait of Judge Bushrod Washington, the task of preparing a brief 
sketch of his life to be used on this occasion has been assigned me, 
and I have consented to it, from a sense of filial duty and not from 
any conceit of my special fitness to perform it. 

The difficulty that confronts a layman in an attempt to portray 
the life of one whose reputation rests on professional achievement 
is so generally understood that I undertake it with much diffi- 
dence, trusting to your very indulgent judgment of my effort, and 
promise to confine myself to a plain statement of unornamented 
fact, much of which I have taken from the v^ritings of Judge Bin- 
ney, Judge Hopkinson and Judge Story, who knew Judge Wash- 
ington intimately, having been closely associated with him during 
the thirty-one years he sat on the bench, and esteemed his character 
fit subject for their literary efforts. 

Born at Bushfield, near the mouth of ISTomini, in this county, 
on the 5th of June, 1762, Bushrod Washington was the oldest son 
of that Colonel John Augustine Washington whose wife was the 
daughter of Colonel John Bushrod. His ancestors on both sides 
of the house had taken part in the councils of the Colony and of 
the Church in the Colony from the beginning of their history, and 
though perhaps not wealthy, he enjoyed from infancy every advan- 
tage that social and political prestige could give; and, what stood 
him in better stead than either or both, the careful training of 
pious, intellectual parents. His early tutelage was firm, if not 
severe. The dominant purpose of parental authority in that day 
was the inculcation of a spirit of reverence. His duty to God, his 
duty to his neighbor, and veneration for his parents held higher 

3 



place in the cnrriciihim of the school in which he was reared than 
the softer policy of obedience from love, and whatever modern 
critics may say of it, its vindication seems secure in the characters 
it produced. In the only letter written by Bushrod Washington 
to his parents that I have seen, he addresses them as "Honored Sir 
and Madam", signs himself, "Your most dutiful, obedient ser- 
vant'^ and the whole tone of this letter, written when he was about 
sixteen, is deferential in the extreme. 

The schoolmaster, too, was a serious proposition. Solomon's 
admonition as to the use of the rod was as strictly followed in 
the private schools, conducted in the homes in the neighborhood, 
as it was at a later period in the public academies, and it was 
under those conditions that young Washington was prepared for a 
course in William and Mary College, where he finished his classical 
education. General Washington's influence secured him a position 
in the law office oi Mr. James Wilson, one of Philadelphia's most 
distinguished lawyers, where he was carefully and thoroughly pre- 
pared for his chosen profression, and it may not be uninteresting 
to note that it was this Mr. Wilson who was later appointed an 
associate justice, and whom Judge Washing-ton succeeded on the 
bench. 

On the completion of his law course, Bushrod Washington prac- 
ticed several years in Westmoreland, which he represented in the 
General Assembly and in the Convention that ratified the Federal 
Constitution, though in neither body did he take a very prominent 
part in debate. Neither does his law practice seem to have been 
altogether satisfactory, as we find a letter from him to the Presi- 
dent intimating a desire to be appointed attorney in the Federal 
Court; but the reply he received was sufficient to convince him 
that nepotism was not one of his uncle's redeeming vices, and he 
shortly afterwards removed to Alexandria, where he was no more 
encouraged than he had been in his native county. 

Whether this apparent lack of success was only such as most 
young lawyers experience, or was due to the great draught on his 
time, occasioned by a close attention to the private affairs of Gen- 
eral Washington, whose public duties obliged him to rely on him 
more and more as the cares of State increased, does not appear, 

4 



but his stay in Alexandria was short, and he moved on to Eich- 
mond, where he quickly came into lucrative and successful prac- 
tice, was soon recognized as one of the ablest lawyers in the State, 
and was engaged in the most important cases argued before the 
Appellate Court. He had been married, before leaving Westmore- 
land, to Miss Anne Blackburn, a daughter of Colonel Thomas 
Blackburn, of Prince William county, who had served on the staff 
of General Washington in the Revolution. The health of this larlv 
was never robust, and was greatly impaired shortly after her mar- 
riage by a shock occasioned by the sudden death of her sister under 
peculiarly distressing circumstances, a shock from which she never 
entirely recovered, and which rendered her so dependent on her 
husband that he took little part in the social functions for which 
Richmond was as celebrated then, as now. His whole time was 
devoted to his practice, to the work of writing and publishing the 
decisions of the Court of Appeals of Virginia and to a tender and 
affectionate attention to his wife, which he never relaxed until 
death claimed him, and which caused him to be cited by his family, 
even in my recollection, as a model of what a husband ought to be. 
Though an ardent Federalist, he had taken little part in poli- 
tics, and it was with much reluctance that he consented to be- 
come a candidate for Congress. Politics in Virginia were running 
high, the Federal party was on its downward road to defeat, and 
sacrifices had to be made. He entered the canvass with all his 
energy and had a fair prospect of election, when he received his 
appointment to the Supreme Bench, which of course withdrew him 
from the field. At the time of his elevation to the bench, Wash- 
ington was only thirty-seven, and it is not unnatural that his selec- 
tion at so early an age for so high an office, should be attributed, 
at least in part, to his relationship to his great kinsman, and I 
have searched most diligently for some word or expression from 
General Washington that might be construed as indicative of a 
desire for his nephew's advancement. General Washington's let- 
ters have been so carefully preserved and so generally published, 
it seems impossible that such wish, if ever written, should remain 
concealed. Xot only so, but the writings of every man who was in 
a position to be of service in procuring his appointment have been 

5 



very carefully collected and published; but in none of them is 
found even a remote reference to such influence. 

President Adams, who made the appointment, seems to have 
considered the question purely vi'ith reference to the public interest. 
Many eminent and distinguished men were urged for the position, 
and the claims and merit of each were carefully considered and 
frankly discussed, but Mr. Adams' mind soon became 'fixed on two 
men, John Marshall and Bushrod Washington ; and however men 
may have viewed it then, certainly few men will now consider it 
disparagement to be rated second to John Marshall. In writing 
to Mr. Pickering, Secretary of State, Mr. Adams says : "General 
Marshall or Bushrod Washington will succeed Judge Wilson. 
Marshall is first in age, rank and public service, probably not 
second in talents. The character, the merit and abilities of Mr. 
Washington are greatly respected, but I think General Marshall 
ought to be preferred ; of the three envoys [to France] the conduct 
of Marshall alone has been entirely satisfactory, and ought to be 
marked by the most decided approbation of the public. He has 
raised the American people in their own esteem, and if the in- 
fluence of truth and justice, reason and argument is not lost in 
Europe, he has raised the consideration of the United States in 
that quarter of the world. If Mr. Marshall should decline, I 
should next think of Mr. Washington." 

Other names continued to bo presented and considered; but in 
a short time after the letter just quoted, Mr. Adams wrote again 
to his Secretary of State : "I have received your letter of Sepitem- 
ber 20th, and return you the commission for a judge of the Supreme 
Court, signed, leaving the name and date blank. You will fill 
the blank with the name of Marshall if he will accept it, if not, 
with that of Washington." 

(See Writings of John Adams, Vol. VIII, pages 506, et seq^) 
Mr. Marshall declined the office and Bushrod Washington was 
apipointed, and became, says David Paul Brown, "perhaps, the 
greatest Nisi Prius Judge that the world has ever known, without 
even excepting Chief Justice Holt or Lord Mansfield", and adds, 
"This appointment and that which speedily followed, the Chief 

6 



Justiceship of John Marshall, were enough in themselves to secure 
a lasting obligation of the country to the appointing power." 

In regard to his qualifications as a judge, I have preferred (o 
cite the opinions of his contemporaries to expressing one of my 
own. Judge Story says: 

"For thirty-one years he held that important station, with a 
constantly increasing reputation and usefulness. Few men, in- 
deed, have possessed higher qualifications for the office, either 
natural or acquired. Few men have left deeper traces, in their 
judicial career, of everything, which a conscientious judge ought 
to propose for his ambition, or his virtue, or his glory. His mind 
was solid, rather than brilliant; sagacious and searching, rather 
than quick or eager; slow, but not torpid; steady, but not unyield- 
ing; comprehensive, and at the same time, cautious; patient in 
inquiry, forcible in conception, clear in reasoning. He was, by 
original temperament, mild, conciliating, and candid ; and yet, he 
was remarkable for an uncompromising firmness. Of him it may 
be truly said, that the fear of man never fell upon him; it never 
entered into his thought, much less was it seen in his actions. In 
him the love of justice was the ruling passion; it was the master- 
spring of all his conduct. He made it a matter of conscience to 
discharge every duty with scrupulous fidelity and scrupulous zeal. 
It mattered not, whether the duty were small or great, witnessed 
by the world, or performed in private, everywhere the same dili- 
gence, watchfulness and pervading sense of justice were seen. 
There was about him a tenderness of giving offense, and yet a fear- 
lessness of consequences in his official character, which I scarcely 
know how to portray. It was a rare combination, which added 
much to the dignity of the bench and made justice itself, even 
when most severe, soften into the moderation of mercy. It gained 
confidence, when it seemed least to seek it. It repressed arrogance, 
by overawing or confounding it." 

Judge Binney, who practiced in his court for twenty years, and 
was afterward associated with him on the bench, says : 

"Without the least apparent effort, he made everybody see at 
first sight, that he was equal to all the duties of the place, cere- 
monial as well as intellectual. His mind was full, his elocution 

7 



free, clear and accurate, his command of all about him indisput- 
able. His learning ancT acuteness were not only equal to the pro- 
foundest argument, but carried the counsel to depths which they 
had not penetrated ; and he was as cool, self-possessed, and efficient 
at a moment of high excitement at the bar, or in the people, as if 
the nerves of fear had been taken out of his brain by the roots. 

"Judge Washington was an accomplished equity lawyer when 
he came to the bench, his practice in Virginia having been chiefly 
in chancery, and he was thoroughly grounded in the common law ; 
but he had not been previously familiar with commercial law; and 
he had had no experience at all, either in the superintendence or 
the practice of jury trials at Nisi PHus, after that fashion which 
prevails in Pennsylvania, and in some of the Eastern and I^orth- 
ern States, as well as in England, where the judge repeats and re- 
views the evidence in his charge to the jury, not unfrequently 
shows them the learning of his mind in regard to the facts, and 
directs them in matter of law. And nevertheless, it was in these 
two departments or provinces — commercial law and Nisi Prius 
practice and administration, particularly the latter — that he was 
eminent from the outset, and in a short time became, in my appre- 
hension, as accomplished Nisi Prius judge as ever lived. I have 
never seen a judge who in this specialty equalled him. I cannot 
conceive a better. Judging of Lord Mansfield's great powers at 
Nisi Prius, by the accounts which have been transmitted to us, I 
do not believe that even he surpassed Judge Washington. 

"One fundamental faculty for a Nisi Prius judge he possessed 
in absolute perfection, it was attention. Attention sprang from his 
head, full grown, at least as truly as Minerva from Jupiter's, or 
he had trained it up in infancy in some way of his own. He pos- 
sessed the power, as I have said before, in absolute perfection. 

"In addition to this, he had great quickness and accuracy of 
apprehension. Washington never interrogated a witness, nor asked 
counsel to repeat what he had said, and but rarely called for docu- 
ments after they had been read to him. He caught the important 
parts in a moment, and made a reliable note of them, before the 
counsel was ready to proceed with further testimony. 

"He had a most ready command of precise and expressive lan- 

8 



guage, to narrate facts or to communicate thoughts, and a power 
of logical arrangement in his statements and reasonings, which 
presented everything to the jury in the very terms and order that 
were fittest, both for the jury and for the counsel, to exhibit the 
whole case. A jury never came back to ask what he meant, and 
counsel were never at a loss to state the very point of their objection 
to his opinion or charge, if they had any objection to make." 

"Few, very few men", says Judge Hopkinson, "who have been 
distinguished on the judgment seat of the law, have possessed 
higher qualifications, natural and acquired, for the station, than 
Judge Washington, And this is equally true, whether we look to 
the illustrious individuals who have graced the courts of the 
United States, or extend the view to the country from which so 
much of our judicial knowledge has been derived. He was wise, 
as well as learned; sagacious and searching in the pursuit and 
discovery of truth, and faithful to it beyond the touch of corrup- 
tion, or the diffidence of fear; he was cautious, considerate and 
slow in forming a judgment, and steady, but not obstinate, in his 
adherence to it. No man was more willing to listen to an argu- 
ment against his opinion ; to receive it with candor, or to yield to 
it with more manliness, if it convinced him of his error. He was 
too honest and too proud, to surrender himself to the undue in- 
fluence of any man, the menaces of any power, or the seductions 
of any interest ; but he was as tractable as humility, to the force of 
truth; as obedient as filial duty, to the voice of reason. When he 
gave up an opinion, he did it not grudgingly, or with reluctant 
qualifications and saving explanations; it was abandoned at once, 
and he rejoiced more than any one, at his escape from it. It is 
only a mind conscious of its strength, and governed by the highest 
principles of integrity, that can make such sacrifices, not only 
without any feeling of humiliation, but with unaffected satisfac- 
tion." 

In any account of Judge Washington a review of his decisions 
is of course what most interest the profession, but such review 
most briefly stated would occupy more time than could be allowed 
on an occasion like this, and I pass at once to some of the less con- 
spicuous incidents of his life. 

9 



It is entirely unDecessary to rehearse before this audience the 
efforts made by the Virginia colonists to prevent the shipment of 
African slaves to her shore; you know, too, that when a power too 
strong for the colony to resist, had fastened the institution upon 
her, the wisest statesmen within her borders would have welcomed 
and contributed to its abolishment by any plan not threatening 
greater evils; and on this question Judge Washington did not 
differ from the majority of the gentlemen of his day and class. 
He had witnessed and on him had fallen the heaviest of the burden 
of General Washington's unfortunate experiment in emancipation; 
he had seen the quiet and contented slave transformed by an act 
of intended philanthropy into a savage menace to the neighbor- 
hood; he had seen its demoralizing effect on those still held in 
bondage, and in company with Judge Marshall had been hurried 
from his official duties to quell a mutiny among the slaves at 
Mount Vernon, only arriving in time to prevent serious trouble. 
How far this insubordination had been brought about by the 
incendiary teaching of emissaries of Northern abolition societies, 
who, under the pretense of patriotic interest in the tomb and the 
late home of the first President, were constantly visiting the place, 
can not be certainly known, but that the influence of those people 
transmitted through these free negroes to his slaves, had practi- 
cally destroyed the value of Judge Washington's property lying 
in that part of the State is shown by a letter written in 1821 to 
the editor of Nile's Begister in reply to attacks that had been made 
on him as President of the American Colonization Society for hav- 
ir^g sold over fifty of the negroes. The letter is too long to be 
copied in full, but the paragraphs dealing with this particular 
phase of the question will, I hope, prove interesting. After show- 
ing how, by the purchase of a number of those negroes, to prevent 
the separation of families, the sale had resulted in little profit to 
him ; he says : 

"I had struggled for about twenty years to pay the expenses of 
ray farm and to afford a comfortable support for those who culti- 
vated it, from the produce of their labor. In this way to have 
balanced that account would have satisfied me, but I always had 
to draw upon my other resources for those objects, and I would 

10 



state upon my best judgment that the produce of the farm has in 
general fallen short of its support from $500 to $1,000 annually. 
To the best of my recollection I have during the above period (two 
years excepted) had to buy corn for the negroes, for which I have 
sometimes paid five, six and seven dollars a barrel. Last year I 
commenced the purchase of this article for ninety negroes in the 
month of May and so continued to the end of it. 

"The insubordination of my negroes and their total disregard 
of all authority, rendered them more than useless to me. Southern 
gentlemen understand, and well know how to appreciate the force 
of this motive, and I, therefore, forbear to enlarge upon it. 

"But if it should be asked, as it well may be, why this tempier 
was more observable at Mount Vernon than upon other plantations 
in the neighborhood, I answer that, that place has at times been 
visited by some unworthy persons, who have condescended to hold 
conversations with my negroes and to impress upon their minds the 
belief that as the nephew of General Washington, or as President 
of the Colonization Society, or, for other reasons, I could not hold 
them in bonda,ge, and particularly that they would be free at my 
death. That such conversations have passed I have evidence en- 
tirely satisfactory to myself; and that such impressions had been 
made on the minds of the negroes was imparted to me by a friend, 
who had no reason to doubt the fact. In consequence of informa- 
tion so truly alarming. I called the negroes together in March last, 
and, after stating to them what I had heard, and that they had 
been deceived by those who had neither their or my good in view. 
I assured them most solemnly that I had no intention to give 
freedom to any of them, and that! nothing but a voluntary act of 
mine could make them so. That disappointment caused by this 
declaration should lead to consequences which followed was to be 
expected." 

There remained then, no alternative, however distasteful, but 
the sale of his negroes. Emancipation without deportation was 
not to be thought of, and he had already gone as far in that direc- 
tion as prudence permitted, and was at that time contributing to 
the support of the most promising of his servants whom he had 
liberated and sent to Liberia. 

II 



Judge "Washington's connection with the Colonization Society 
deserves more notice than it is possible to give it in a sketch of 
this character. He was its first president, and whatever of success 
it enjoyed, was due in no small measure to his labor and interest 
and to the assistance and confidence which his connection with it 
secured. What the work of this society would have amounted to but 
for the Civil War, is a matter of speculation ; what it has amounted 
to is best told perhaps by C. H. J. Taylor, who was appointed by 
President Cleveland Minister to that country, and who on his re- 
turn to the United States, painted a pathetic picture of reversion 
to type. 

Judge and Mrs. Washington had no children, and the condition 
of her health rendered impossible a continuance of the hospitality 
that had made Mount Vernon famous during the life of its pre- 
vious owner, A dinner now and then to members of the Supreme 
Court, and that informal visiting that constituted one of the charms 
of Virginia society, was all that Mrs. Washington's strength per- 
mitted, and even that was much interrupted by their frequent 
absences on account of official duties. Mrs. Washington always 
accompanied her husband and insisted on traveling in their private 
carriage, in which they made their regular journeys to Philadelphia 
and Trenton. The fall term of 1829 was attended with much diffi- 
culty. He managed to sit through the session at Trenton and came 
back to Philadelphia, hoping to perform his duties there, bat grew 
steadily worse and died on the 26th of November, 1829, his wife 
dying the following day. 

One short incident as illustrating his attitude toward his slaves, 
and I am done. 

The incident was related to me by a niece of Mrs. Washington, 
who was a constant visitor at Mount Vernon, and now living, at the 
age of nearly one hundred years. 

An old negro, who was a kind of under gardener, had been en- 
couraged by the promise of a dram, to catch a rat that had done 
much damage and destroyed some of the finest bulbs in the con- 
servatory. The old negro had long pitted his cunning against that 
of the rat, and had devised many traps for its capture, but his 
efforts had been unrewarded, when one day, while the family was 

12 



ponded to by the servant waiting on tlie table. Eeturnin, to the 

rat?nHhnM f"™' ^''^-^ " "as nobody but old Joe with a 
lat and that he had sent him away. 

,,iZl !"^ ^"^ "f *"*•" ''''^ "'^ J«'«^> «><! ''ailing for a 

. h d or' r '"" "" "" P™"'"' ''™" '™^ "--"took i 
the door, accompanymg ,ts presentation to his old negro with 
highly appreciated praise. ° 

Such, Mr. President, was the man most inadequately portrayed 
tor whose portrait we beg a place among the portraits of the other 
mus nous sons of this county, and it is no disparagement to the 

twit r;°' "r '" '"" " P'^^^' ^^^^^^ ne'rep-resented l t 
they stood for His regard for truth and justice was as great as 
was that of his greater kinsman, and his devotion to duty as sub- 
lime as was tliat of the immortal Lee. 



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